VCP342.H 
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SPEECH 
Hon#  William  A.  Graham 


THE  LIBRARY  OF  THE 

UNIVERSITY  OF 

NORTH  CAROLINA 

AT  CHAPEL  HILL 


THE  COLLECTION  OF 
NORTH  CAROLINIANA 


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dL  VCp3ii2,i/ 

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SPEECH 


OF 


HON.  WILLIAM  A.  GRAHAM. 


OF    ORANGE 


Li  the  Convention  of  North- Carolina,  Deo.  lili,  1861,  on  the 
Ordinance  concerning  Test  Oaths  and  Sedition. 


KALEIGH : 

W-    W  .    H  OLDEN,    TKINTEK 
1862. 


Digitized  by  the  Internet  Archive 
in  2013 


http://archive.org/details/speechofhonwilliOOgrah 


SPEECH. 


Mr.  President  : — When  the  original  ordinance  pertaining 
to  this  subject  came  up  for  consideration  several  days  since,  I 
took  occasion  to  express  rny  decided  aversion  to  test  oaths,  as 
antiquated  instruments  of  oppression  and  despotism,  unsuited 
to  an  enlightened  age,  and  wholly  at  war  with  all  our  ideas  of 
free  republican  government.  I  was  then  of  opinion  that  an 
indefinite  postponement  was  the  proper  disposition  to  make  of 
the  entire  topic.  At  the  suggestion  of  others,  it  was  referred 
to  a  committee,  of  which,  under  your  appointment,  I  had  the 
honor  to  be  a  member.  When  that  committee  assembled, 
and  the  honorable  Chairman,  Mr.  Biggs,  produced  and  read 
from  an  old  act  of  1777,  as  contained  in  Iredell's  Revisal,  the 
two  first  sections  of  the  ordinance  reported  by  him,  without 
much  reflection  I  gave  that  part  of  the  ordinance  my  concur- 
rence, and  consented  that  it  might  be  reported  to  the  Conven- 
tion. But,  in  committee,  as  in  this  House,  everywhere  and 
under  all  circumstances,  I  have  been  unalterably  opposed  to 
a  test  oath,  and  especially  to  that  most  objectionable  form  of 
such  an  oath  contained  in  the  report  of  the  committee,  and 
proposed  to  be  enacted  into  a  law  of  the  State.  And  upon  a 
little  more  consideration,  I  am  satisfied  that  no  enactment  by 
this  Convention  is  required  in  regard  to  sedition  ;  I  therefore, 
now  submit  the  motion,  that  in  the  outset  I  deemed  appropri- 
ate, that  the  further  consideration  of  the  subject  be  indefi- 
nitely postponed.  I  esteem  it  proper  in  this  connection  further 
to  state,  that  the  eloquent,  argumentative  report  of  the  Chair- 
man of  the  committee,  so  full  of  fiery-  zeal  and  patriotism, 
was  never  heard  of  by  me,  until  it  was  read  by  the  Chairman 
at  your  desk.  If  it  was  ever  read  to  the  committee,  it  was  on 
some  occasion  other  than  the  two  meetings  I  was  summoned 
to  attend,  and  I  received  no  intimation  that  such  a  paper 
might  be  expected.  This  I  mention,  not  in  the  way  of  com- 
plaint, but  to  acquit  myself  of  any  neglect  of  duty  in  failing, 
to  present  a  counter-report  against  a  document,  which,  with 
all  respect  I  must  say,  inculcates  doctrines  most  intolerant  and 
tyrannical. 

Mr.  President,  the  original  proposition  was  liable  to  objec- 
tions enough.  I  endeavored  to  point  out  these  in  the  former 
discussion.     It  allowed   a  single  magistrate  upon  complaint 


made,  to  bring  before  himself  any  citizen  accused  of  disloy- 
alty, and  then  to  determine,  in  the  first  place,  -what  constituted 
disloyalty — second,  whether  the  person  charged  was  guilty — 
and  thirdly,  to  impose  on  him  a  sentence  to  take  an  oath  of 
allegiance  to  the  State,  or  be  expelled  from  the  country. 
Revolting  to  our  conceptions  of  justice  and  freedom  as  was 
this  concentration  of  power  in  the  hands  of  a  magistrate,  it 
yet  retained  something  of  the  manly  spirit  of  the  common 
law,  and  of  the  elementary  principles  of  liberty  embodied  in 
our  bill  of  rights.  There  was  to  be  a  responsible  prosecutor — 
persons  arraigned  and  accused  were  to  be  allowed  the  custo- 
mary privilege  of  defence,  with  the  right  of  course,  to  confront 
the  accusers  and  witnesses,  and,  above  all,  to  be  protected 
against  being  compelled  to  srive  evidence  against  themselves. 
Btit  the  substitute  of  the  committee  proposes  what?  Why, 
to  institute  a  proceeding  in  the  nature  of  a  criminal  prosecu- 
tion against  every  free  citizen  ;  yea,  sir,  against  every  male 
inhabitant  of  the  State,  from  the  beardless  youth  of  sixteen 
years,  five  years  in  advance  of  his  admission  to  the  rights  of 
a  citizen,  to  the  aged  patriarch  of  one  hundred  and  sixteen, 
tottering  on  his  staff,  with  one  foot  in  the  grave,  by  which 
they  are  each  and  all  to  be  attainted  of  treason,  and  banished 
from  their  homes  and  country;  or,  if  graciously  permitted  to 
remain,  to  be  deprived  of  their  rights  as  freemen,  and  reduced 
to  a  degraded  caste — unless  and  until  they  shall  purge  them- 
selves of  this  foul  crime,  by  taking  the  oath  of  allegiance, 
military  fealty,  and  abjuration,  compounded  and  prescribed  in 
the  ordinance  before  us.  This  is  the  obvious  effect  of  the 
provisions  relating  to  a  test  oath,  when  analysed  and  brought 
to  a  plain  interpretation.  Your  magistrates  are  to  be  sent  out 
into  all  the  land,  from  the  shores  of  the  ocean  to  the  summits 
of  the  Smoky  Mountains,  and  they  are  to  beset  every  man 
and  bo}r  above  the  prescribed  age,  with  a  test  oath  in  the  left 
hand,  and  a  sentence  of  banishment  or  degradation  in  the 
right.  In  this  dilemma,  there  is  to  be  no  means  of  escape, 
nor  any  more  freedom  of  action  than  when  the  highwayman 
with  his  pistol  at  your  breast,  offers  the  alternatives,  "your 
money  or  your  life."  Observe,  sir,  there  is  to  be  no  inquiry 
as  to  guilt,  as  upon  accusation  and  arraignment,  but  the  party 
is  to  be  placed  by  law  in  a  state  of  condemnation — his  guilt 
is  to  be  assumed,  until  he  shall  exonerate  himself  by  taking 
the  oath  ;  and  upon  his  refusal  so  to  do,  his  guilt  being  put 
beyond  question,  the  penalty  annexed  is — what?  Not  a  dis- 
qualification for  holding  office — not  a  forfeiture  of  a  part  or 
the  whole  of  his  goods  and  lands,  but  a  forfeiture  of  his  birth- 
right as  a  citizen  of  North- Carolina. 


Mr.  President,  if  this  Convention,  like  a  French  national 
Assembly,  were  to  declare  itself  in  permanent  session,  and 
arrogate   all   the  powers  of  government,  it  would  give  no 
greater  shock  to  public  sentiment,  and  make  no  more  danger- 
ous stride  towards  despotism,  than  would  be  effected  by  the 
passage  of  this  ordinance.     It  is  true,  there  have  been  confided 
to  us  extensive  powers,  but  they  are  delegated  powers,  and 
must  be  exercised  not  whimsically  or  tyrannically,  but  in  con- 
formity with  those  elementary  principlesof  freedom  and  justice, 
on  which  are  founded  our  American  system  of  Constitutional 
government.     If  these  are  violated,  it  is  usurpation  on  our  part, 
t,n  abuse  of  power  equal  to  usurpation,  and  for  want  of  o  1  er 
remedy,  it  may  expect  to  provoke   that  old  and  primary  one 
of  resistance  on  the  part  of  the  people.     When  elected  to  these 
seats  in  the  month  of  May  last,  we  were  not  understood  to  be 
placed  above,  or  out  of  the  reach  of  the  well  known  respon- 
sibilities of  the  representative  to  the  constituent  body.     Our 
countrymen  supposed  that  they  retained  the  right  to  judge  of 
and  canvass  our  whole  proceedings  as  freely  as  they  were 
accustomed  to  do  as  to  those  of  other  representatives ;  and 
that  if  dissatisfied  with  what  we  had  done,  a  sufficient  majority, 
by  some  process  or  other,  might  set  it  aside,  and  afford  redress. 
They  further  supposed,  that,  although  we  had  power  to  dis- 
franchise men,  and  change  the  qualifications  for  the  right  of 
suffrage,  yet  that  no  new  test  of  citizenship  would  be  applied 
to  those  born  upon  the  soil,  of  parents  who  had  achieved  the 
independence  of  the  country,  and  established  the  free  institu- 
tions, whose  essential  features  no  one  desires  to  change.  What, 
then,  will  be  their  surprise,  not  to  say  indignation,  if  this 
ordinance  shall  pass,  and  they  are  told  that  no  man  can  ever 
vote  again— .nay,  that  no  man  will  be  allowed  to  remain  in 
the  State,  but  every  one  will  be  exiled  who  does  not  take  an 
oath   that  the  Convention  has  ordained?     Sir,  every  North 
Carolinian   rejoices   in  the   idea,  that,  like  St.  Paul,  he  was 
free-born.     And,  although  this  freedom  was  purchased  at  a 
great  price,  no  less  than  the  blood  of  his  fathers  shed  in  every 
battle-field  of   American  independence,  from  the  shores  of 
the  iludson  to  the  everglades  of  Florida,  it  came  to  hirn  as  an 
inheritance,  the  more  valued,  because  of  its  association  with 
his  ancestral  pride  and  glory.   Bis  right  to  dwell  in  and  breathe 
the  pure  air  of  the  land  of  his  birth;  his  right  to  participate 
in  the  election  of  rulers,  and,  if  it  suit  his  inclination  and  the 
will  of  a  majority,  to  be  himself  invested  with  a  portion  of 
the  powers  of  the  republic,  he  will  suffer  neither  to  be  taken 
away  nor  trifled  with.     He  did  not  acquire  them  by  an  oath, 
and  he  will  spurn  any  oath  offered  to  him  as  a  condition  of 


.$ 


IS 


<c 


their  continued  enjoyment.  It  is  one  of  those  blunders  char- 
acterized by  Talleyrand  as  worse  than  a  crime,  for  statesmen  by 
their  measures  to  encroach  upon  and  offend  so  sacred  a  feeling 
as  the  pride  of  nativity— the  self-respect  and  manhood  of  a 
high-spirited,  free-born  American.  Sir,  the  people  when 
presented  with  this  oath,  will  turn  upon  this  Convention,  and 
inquire  "upon  what  food  have  these  our  Caesars,"  at  Haleigh, 
"  fed,  that  they  have  grown  so  great  ?''  "We  thought  they  were 
our  servants  ;  how  have  they  become  our  masters?  We  had 
a  free  election  according  to  the  usages  and  Constitution  of 
our  fathers  when  we  chose  them  as  our  representatives ;  by 
what  legerdemain,  by  what  audacity,  do  they  declare  that  we 
shall  never  vote  again,  no  nor  inhabit  our  present  homes,  but 
shall  be  driven  out  as  fugitives  and  vagabonds,  unless  we  take 
an  oath  that  they  have  dictated  ?  It  will  be  no  answer  to  tell 
them,  as  they  are  told  in  substance  in  the  report  of  the  com- 
mittee, and  the  speech  of  the  Chairman,  Mr.  Biggs,  in  support 
of  the  ordinance,  that  the  oath  is  but  an  evidence  of  patriot- 
ism, and  no  one  but  a  traitor  need  have  any  hesitation  in  taking 
it.  The  prompt  response  would  be,  We  care  but  little  for  the 
thing  proposed  to  be  sworn  to  \  the  objection  is  to  being  com- 
pelled to  swear  at  all,  as  a  condition  to  the  enjoyment  of  our 
inborn  rights  of  property  and  citizenship.  We  render  to  the 
government  our  loyalty  and  duty,  as  we  cherish  and  support 
our  wives  and  children,  and  perform  other  obligations  as 
members  of  society  ;  but  we  will  take  no  oaths  upon  compul- 
sion, to  bind  us  to  those  duties,  and  least  of  all,  an  oath  that 
is  accompanied  with  the  polite  alternatives  of  exile  or  degra- 
dation. Kor  will  they  be  any  better  satisfied  with  that  other 
idea  contained  in  the  report,  and  which  seems  to  be  the  favorite 
explanation  of  the  ordimvice,  that  it  is  a  mere  measure  of 
detective  police,  not  intended  to  do  any  harm  to  patriotic  men, 
but  to  discover  and  expel  disloyal  ones.  This  assumes  that  if; 
is  legitimate  and  proper  to  hunt  through  the  consciences  of 
all  good  men  by  an  oath  of  discovery,  in  order  to  ferret  out 
the  bad.  By  parity-  of  reasoning,  if  a  treasonable  correspond- 
ence were  suspected  in  any  county  or  neighborhood,  every 
man  should  be  required  to  open  his  desk,  and  submit  his 
private  correspondence  and  papers  to  the  inspection  "of  a 
magistrate.  This  certainly  would  be  no  more  harsh  than  to 
ask  a  discovery  of  his  conscience.  Or  to  illustrate  it  more 
strikingly,  it  is  in  principle,  the  same  as  in  case  a  theft  had 
been  committed,  in  order  to  be  sure  of  visiting  punishment 
on  the  real  offender,  you  should  require  every  inhabitant  of 
the  vicinage  to  receive  forty  stripes  save  one.  Your  people 
will  say  to  you,  point  out  the  guilty  or  suspected  persons,  take 


xhe  warrant  of  the  law  in  your  hands,  summon  us  of  tU<e  p&sse 
comitatus  if  necessary,  and  we  are  ready  to  render  our  duty 
anywhere  ;  but  our  homes  and  consciences  are  not  to  be  made 
hunting  grounds  for  traitors  and  felons,  and  if  we  could  submit 
to  make  them  such,  we  should  not  feel  ourselves  much  elevated 
above  either. 

But,  Sir,  the  jealous  and  sagacious  spirit  of  liberty  which 
pervades  our  people,  will  discover  in  this  process  of  a  test  oath 
something  more  than  an  usurpation  or  abuse  of  power  on  our 
part,  and  an  instrument  of  tyranny,  oppression  and  degrada- 
tion upon  the  citizen.  They  will  perceive  at  a  glance,  that  no 
more  effectual  contrivance  could  be  devised  to  enable  a  faction 
in  the  possession  of  temporary  power,  to  convert  the  govern- 
ment into  an  oligarchy,  expel  their  opponents  from  the  State, 
and  riot  upon  the  substance  they  had  left.  Such  a  faction  need 
only  to  enact  a  test  oath,  for  patriotic  objects  of  course,  but 
to  take  care  to  infuse  into  it  such  ingredients  as  they  knew 
would  be  offensive  and  inadmissable  by  its  opponents,  and 
declare  that  every  man  who  refused  it,  should  be  banished 
from  the  State,  or  lose  his  rights  as  a  citizen  with  forfeiture  of 
all  his  possessions.  Carry  it  out  with  the  high  hand  of  force, 
and  it  makes  no  difference  whether  a  mnjority  or  minority, 
whether  one  in  fifty  will  take  the  oath  ;  the  few  who  do  will 
have  the  whole  government  in  their  hands,  and  the  spoils  of 
the  exiles  besides.  Our  theory  has  been,  that  a  majority 
within  the  limitations  of  our  written  Constitutions,  can  mould 
the  government  at  will — can  make  revolutions  and  unmake 
them  ;  but  this  is  an  invention  by  which  that  theory  is  sub- 
verted, and  those  who  have  power  may  keep  it  till  the  end  of 
time.  Whenever  they  are  about  to  lose  favor  with  the  con- 
stituent body,  they  have  but  to  prescribe  a  new  oath,  and  that 
no  man  shall  vo**f  who  refuses  it,  and  they  will  never  fail  in 
an  election.  Since  the  commencement  of  the  present  revo- 
lution and  the  adoption  of  the  new  Constitution  of  the  Con- 
federate States,  there  has  been  much  speculation  as  to  the 
facility  with  which  it  may  be  abrogated  by  any  State,  who 
may  become  dissatisfied  with  its  operation  or  administration. 
If  there  be  that  virtue  in  test  oaths  which  this  ordinance 
supposes,  it  may  be  perpetuated  indefinitely.  If  there  be  a 
majority  favorable  to  it  in  the  Legislature,  as  there  will  be  of 
course  in  the  outset,  whenever  they  suspect  opposition  or 
lukewarmness,  they  may  enact  an  oath  to  suit  the  case,  and 
banish  those  who  refuse  it  before  the  next  election.  I  speak 
as  if  there  were  no  constitutional  impediments  to  such  a 
course,  as  this  ordinance  considers  that  there  are  none,  or 
proposes  to  override  them,  if  they  exist. 


Mr.  President,  the  very  mention  of  a  test  oath  carries  us 
back  to  the  "  bigot  monarchs  and  the  batcher  priests"  of  the 
days  of  the  Tudors  and  Stuarts,  and  beyond  these,  to  the 
Inquisition  itself.  It  is  a  device  of  power  in  Church  and  in 
Stale,  to  perpetuate  itself  by  force,  against  free  discussion  and 
inquiry,  and  in  defiance  of  what  in  more  liberal  times  we  call 
public  sentiment.  In  direct  contravention  of  that  most 
essential  principle  of  criminal  justice,  that  no  man  shall  be 
compelled  to  give  evidence  against  himself,  it  requires  of  its 
victim  the  confession  of  a  creed,  and  his  failure  or  refusal  it 
takes  as  conclusive  evidence  of  his  guilt,  and  inflicts  upon 
him  torturous  penalties  or  forfeitures,  such  as,  if  they  will  not 
cure  him  of  his  heresy,  may  deter  others  in  like  cases  offend- 
ing. Whether  the  creed  be  religious  or  political,  or  the  remedy 
be  the  thumbscrew,  the  iron  boot,  the  break- wheel  or  the 
rack,  or  whether  it  be  banishment,  deprivation  of  privilege, 
degradation,  or  forfeiture  of  estate,  there  is  no  difference  in 
the  odiousness  of  the  principle.  Forsaking  every  vestige  of 
Christian  charity  and  toleration,  it  assumes  to  control  by  force 
that  conscience,  which  the  God  who  gave  it  designed  to  be 
free,  and  avows  its  purpose  to  drive  men  to  perjury  or  self- 
accusation.  I  have  somewhere  seen  or  read  of  a  picture  of  a 
trembling  prisoner  of  the  Inquisition,  who  when  called  to  take 
the  religious  test  of  that  inexorable  tribunal,  replies:  "I 
cannot;  I'll  be  damned,  if  I  do."  To  which  the  stern  Inquis- 
itor replies :  "  You'll  be  damned,  if  yon  don't."  It  will  require 
no  stretch  of  imagination  to  picture  your  justice,  under  this 
ordinance,  with  his  prisoner  before  him,  refusing  the  oath, 
with  "  I'll  be  perjured,  forsworn,  if  I  take  it ;"  and  the  equally 
stern  reply,  "  You'll  be  banished,  if  you  don't  take  it." 

The  history  of  our  mother  country  affords  us  some  instruc- 
tion on  the  subject  of  tests,  and  the  persecutions  that  attended 
them,  religious  and  political.  In  the  Catholic  ascendency, 
Protestants  were  the  victims;  in  the  Protestant  reigns,  Cath- 
olics suffered  in  turn  ;  and  it  is  a  reproach  to  that  enlightened 
and  Christian  nation,  even  that  down  within  our  own  memories, 
no  man  could  hold  even  a  military  office  until  he  took  a  test  oath 
against  Catholicism,  and  received  the  sacraments  according  to 
the  rites  of  the  Church  of  England.  This  last  vestige  of 
intolerance  and  bigotry  in  that  country  was  swept  away  under 
the  enlightened  counsels  of  Earl  Gray,  the  Duke  of  Welling- 
ton and  Sir  Robert  Peel,  not  more  than  thirty  years  ago. 

But  in  the  worst  and  most  intolerant  times,  neither  in  Eng- 
land nor  in  any  civilized  nation  of  which  I  have  recollection, 
was  there  ever  such  an  experiment  made  as  is  proposed  to  be 
made  here,  of  prescribing  a  test,  religious  or  political,  and 


running  a  mack  with  it  against  the  whole  people,  to  see  if 
perchance,  some  victim  may  not  be  found  for  banishment  or 
degradation. 

In  this  country  we  have  known  but  little  of  test  oaths, 
except  as  we  have  read  of  them  under  more  arbitrary  gov- 
ernments. The  Legislature  of  Virginia,  more  than  fifty  years 
ago,  in  a  laudable  desire  to  suppress  the  practice  of  duelling, 
directed  an  oath  to  be  taken  by  certain  public  functionaries, 
and  among  others  the  advocates  in  her  courts  of  justice,  that 
they  would  not  engage  in  any  duel.  Mr.  Benjamin  "Watkins 
Leigh,  since  known  to  the  country  as  one  of  her  most  distin- 
guished lawyers  and  statesmen,  was  then  at  the  bar,  and  the 
court  of  appeals  having  decided  that  the  oath  must  be  taken, 
Mr.  Leigh  requested  time  to  consider  the  question  of  the 
power  of  the  Legislature  to.  impose  such  an  oath.  And  at  a 
subsequent  day  he  submitted  an  argument  which  satisfied  the 
court  that  the  power  did  not  exist,  and  they  unhesitatingly 
reversed  the  former  decision,  which  Chief  Justice  Roane 
pronounced  to  be  an  "  off  hand  and  erroneous "  one ;  an. 
example  of  candor  and  fairness  of  mind  which  I  beg  to  com- 
mend to  all  who  may  have  inclined  in  favor  of  this  ordinance. 
In  his  argument,  Mr.  Leigh  so  vividly  depicts  the  mischievous 
nature  of  test  oaths  as  the  4' barbed  and  poisoned  weapons" 
of  despotic  power,  that  I  will  detain  the  Convention  by  reading 
a  few  sentences  from  it : 

"  If  the  words  of  the  Constitution,"  said  he,  "  were  doubt- 
ful, its  spirit  could  not  be  mistaken.  If  the  Legislature  might 
add  one  new  disqualification,  they  might  add  many ;  multiply 
disabilities  without  end  ;  disqualify  whole  districts  or  classes 
of  men  by  personal  or  local  description  ;  make  an  academical 
degree,  or  even  a  previous  service  in  one  of  its  own  bodies,  a 
necessary  qualification  ;  and  thus  convert  the  government  into 
an  oligarchy.  If  this  tremendous  power  existed  at  all,  it  was 
boundless  and  uncontrollable  as  the  winds;  and. dissipated  at 
once  all  our  fond  notions  of  a  written  constitution,  late  the 
glory  of  American  politics.  These  test  laws,  particularly, 
were  the  first  weapons  young  oppression  would  learn  to 
handle ;  weapons  the  more  odious,  since,  though  barbed  and 
poisoned,  neither  strength  nor  courage  was  requisite  to  wield 
them.  Should  we  rely  on  public  virtue  to  keep  us  from  the 
use  and  extension  of  this  system  of  tests  ?  In  no  age,  nor 
clime,  nor  nation,  had  ever  virtue  wholly  ewayed  human 
bosoms  and  actions;  man  was  universally  liabie  to  be  trans- 
ported with  passion,  blinded  with  folly,  corrupted  with  vice  ; 
and  yet  more  with  power,  maddened  with  faction,  and  fired 
with  the  lust  of  domination  ;  let  us  not  flatter  our&elves  that  we 


10 

A'ere  exempt  from,  the  common  lot;  and  although  the  wise 
exposition  of  the  bill  '6"f  rights,  by  the  act  to  establish  religious 
freedom,  might  fc'r  'a  time  secure  us  from  a  ■teligious  test,  a 
.political  one  was  certainly  a  possible,  perhaps  a  probable,  and 
irot  very 'remote  event.  Sir,  I  am  possessed  with  a  strange 
delusion  if  the  Very  law  in  question  does  not  appoint  a  politick? 
test.  1  fear  other  instances  might  be  recounted.  Such  are 
the'i?EGi>TiTiKG8.     The  end  of  all  these  things  is  death." 

Sir,  this  ordinance  goes  beyond  the  apprehensions  of  Mr. 
'Lei£»:,i,  and  does  apply  a  religious  test  to  a  considerable  portion 
'of  our  population,  as  a  condition  of  their  being  allowed  to 
'"emain  citizens.  It  would  be  a  very  great  mistake  to  suppose, 
that  the  oath  which  it  prescribes,  was  an  oath  "to  support  the 
Constitution  of  the  Confederate  States,"  the  only  oath  to  that 
government  required  by  its  Constitution ;  or  that  it  was  the 
common  oath  of  allegiance  to  the  State  of  North-Carolina,  or 
both  of  these  together.     Let  us  read  it: 

"  I,  A.  B.,  do  solemnly  swear,  (or  affirm,  as  the  case  may 
be,)  that  I  will  bear  fauhful  and  true  allegiance  to  the  State 
of  North  Carolina,  and  will  to  the  utmost  of  my  power,  sup- 
port, maintain  and  defend  the  independent  government  of 
the  Confederate  States  of  America,  against  the  government 
of  the  United  States,  or  of  any  other  power,  that  by  open  force 
or  otherwise,  shall  attempt  to  subvert  the  same.  I  do  hereby 
renounce  my  allegiance  to  the  government  of  the  United 
States,  and  will  support  and  defend  the  Constitution  of  the 
Confederate  States  of  America,  and  the  Constitution  of  this 
State,  not  inconsistent  with  the  Constitution  of  the  Confeder- 
ate States — so  help  me  God." 

Now,  Sir,  the  requirement  of  this  affirmation  to  be  taken 
by  the  denomination  called  Quakers,  is  as  effectual  an  act  of 
banishment  of  that  sect,  as  if  it  had  been  plainly  denounced 
in  the  ordinance.  And  the  same  may  be  said,  I  presume,  in 
relation  to  Menonists  and  Dnnkers,  though  I  have  less  knowl- 
edge of  them;  There  were  some  of  the  last  named  class  in 
the  county  of  Lincoln  during  my  boyhood;  whether  they 
remain,  and  keep  up  their  peculiar  tenets,  I  am  not  informed. 
But  the  Quakers  are  a  well  known  sect,  numbering  not  less 
than  ten  thousand  persons  in  the  State — and  it  is  equally  well 
known  that  they  will  not  engage  in  war,  and  are  conscien- 
tiously scrupulous  against  bearing  arms.  Our  laws,  from  the 
Revolution  downward  to  this  day,  have  respected  their  scru- 
ples, and  extended  to  them  the  charity  and  toleration  due  to 
the  sincerity  and  humility  of  their  profession.  This  ordinance 
wholly  disregards  their  peculiar  belief,  and  converts  every 
man  of  them   into  a  warrior  or  an  exile.    True,  they  are 


11 

allowed  to  affirm,  but  the  affirmation  is  equivalent  to  the  oath 
of  the  feudal  vassal  to  his  lord,  to  "  defend  him  with  life  and 
limb  and  terrene  honor."  It  is,  that  they  "  will  to  the  utmost 
of  their  power,  support,  maintain  and  defend  the  independent 
government,  of  the  Confederate  States  of  America,  against 
the  United  States,  or  any  other  power,  that  by  open  force  or 
otfi&i  wise  may  attempt  to  subvert  the  same,"  &c.  If  this  does 
not  include  military  defence,  it  is  difficult  to  find  language 
that  would.  It  is  so  well  known  that  the  ordinary  oath  to  the 
State  implies  defence  with  arms,  that  the  Quaker-*  have  ever 
refused  to  affirm  in  its  terms,  but  have  had  a  special  affirma- 
tion provided  for  them,  as  may  be  seen  in  the  present  Revised 
Code,  and  in  all  former  editions  of  our  laws.  This  ordinance, 
therefore,  is  nothing  less  than  a  decree  of  banishment  to 
them.  Sir,  thra  humble  denomination,  who  in  the  meekness 
and  charity  which  so  distinguished  their  Divine  Master,  yield 
precedence  to  none,  we^e  the  first  white  men  who  made  per- 
manent settlements  within  our  borders.  Scourged  and  buffeted 
by  Puritanism  in  New  England,  and  Prelacy  in  Virginia,  they 
found  no  rest  or  religious  freedom,  until  they  had  put  the 
great  Dismal  Swamp  between  themselves  and  the  nearest  of 
their  persecutors.  In  the  dark  forests  of  its  Southern  border, 
they  obtained  a  toleration  from  the, savage  red  man  which  had 
been  denied  them  by  their  Anglo-American  brethren.  There 
they  opened  the  "w  ilderness,  reared  their  modest  dwellings, 
and  filled  the  land  with  the  monuments  of  civilization.  There, 
and  upon  the  upper  waters  of  the  Cape  Fear,  which  they 
subsequently  colonized,  their  posterity  has  remained  to  this 
day — a  quiet,  moral,  industrious,  thrifty  people,  differing  from 
us  in  opinion  on  the  subject  of  slavery,  but  attempting  no 
subversion  of  the  institution — producing  abundantly  by  their 
labor,  paying  punctually  and  certainly  their  dues  to  the  gov- 
ernment, and  supporting  their  own  poor.  Sir,  upon  the 
expulsion  from  among  us  of  such  a  people,  the  civilized  world 
would  cry,  shame  ! 

But,  it  may  be  said  that  this  was  not  intended.  If  so,  it 
but  demonstrates  that  it  is  dangerous  for  freemen  to  take  hold 
of  the  weapons  of  despotism  and  brandish  them  about,  lest 
they  do  mischief  more  than  was  designed.  But  there  is  cer- 
tainly no  exception  of  Quakers  in  the  ordinance,  though  they 
are  excepted  and  specially  provided  for  in  the  act  of  Assembly, 
1777,  from  which  its  main  features  are  copied, — none  in  those 
amendments  which  the  Chairman  signified  his  intention  to 
move  ;  and  the  report  of  the  committee  declares  "  there  can 
be  no  neutrals  in  the  struggle"  in  which  we  are  engaged. 

It  may  not  be  a  religious  test  to  others,  but,  Sir,  it  is  a  dis- 


re 

tnrbanee  of,  and  interference  with  the  religious  sentiment  and 
domestic  repose  of  the  country,  not  to  be  justified,  unless 
called  for  by  some  most  urgent  necessity.  The  veteran  of 
the  Court-house,  who  sees  every  breach  of  the  peace  and 
misdemeanor,  and  calculates  on  proving  his  attendance  as  a 
part  of  his  income,  may  regard  oaths  as  unmeaning  ceremo- 
nies ;  but  your  quiet  and  retired  citizen,  who,  except  when 
called  to  the  public  duty  of  a  juror,  or  to  prove  his  neighbor's 
will,  has  seldom  been  sworn  at  all,  looks  upon  thera  in  the 
language  of  your  public  statute,  as  "  being  most  solemn 
appeals  to  Almighty  God,  as  the  omniseient  witness  of  truth 
and  the  just  and  omnipotent  avenger  of  falsehood,"  and  takes 
them  not  without  a  feeling-of  awe.     Beyond  his  daily  prayer — 

"That  He  who  stills  the  raven's  clamorous  nest,. 

And  decks  the  filly  fair,  in  flowery  pride, 
Would  in  the  way  Hi3  wisdom  sees  the  best, 

For  him,  and  for  his  little  ones  provide;'" 

Beyond  thisj  his  morning  and  evening  iraploration,  repeated' 
perhaps  with  unwonted  fervor  and  emphasis,  in  these  times  of 
difficulty  and  scarcity,  he  takes  not  his  Maker's  name.  He  is 
accustomed  to  vex  liis  ear  with  no  blasphemous,  unnecessary, 
unhallowed  appeals.  When  you  invade  the  retirement  of 
such  a  man  by  domiciliary  visitation,  and  demand  from  him 
his  oath,  with  a  threat  of  banishment  branished  over  his  head, 
he  will  feel  as  would  the  pagan  whose  household  Gods  had 
been  rudely  jostled  from  their  seats.  He,  as  well  as  you,  Mr. 
President,  has  read  those  thrilling  words  in  which  Chatham 
has  engraven  on  our  memories  the  domestic  rights  of  our 
fathers  beyond  the  seas,  that  u  every  Englishman's  house  is 
his  castle,  though  so  rude  and  humble  that  the  rains  and  the 
winds  of  heaven  may  beat  upon,  and  may  enter  it,  yet  the 
king  cannot  enter  it."  He  will  reflect  that  until  now  his  house 
lias  been  equally  sacred  from  the  intrusion  of  government, 
and  his  conscience  unruffled  by  impertinent  interrogation  % 
and  he  will  instinctively  inquire,  if  these  are  the  first  fruits 
of  the  new  order  of  things,  what  may  not  be  expected  in  the 
sequel?  And  in  spite  of  all  the  apologies  and  disclaimers  that 
your  magistrates  may  be  instructed  to  make,  he  can  sensibly 
arrive  at  no  other  conclusion,  than  that  he  was  suspected  of 
disloyalty,  and  that  the  visit  was  designed  to  drive  him  to 
perjury,  or  exile  ;  or  else  that  it  was  a  senseless  proceeding, 
which  ought  to  bring  the  government  that  made  it  into 
contempt. 

But,  Mr.  President,  the  enormity  of  the  proposition  remains 
yet  to  be  told.  It  violates  every  safeguard  of  personal  free- 
dom embodied  in  our  bill  of  rights,  most  of  which  have  been 


IS 

■consecrated  in  the  history  of  English  liberty  from  the  time  of 
Magna  Charta  itself.  The  Northern  government  became  a 
despotism  by  usurpation.  Pass  this  ordinance  upon  the  old 
plea  of  tyrants,  the  necessity  of  the  times,  and  the  Southern 
one,  within  the  borders  of  North-Carolina,  will  have  become 
a  despotism  by  legislation.  Whereas,  our  people  are  resolved 
to  be  independent,  and  free,  not  only  in  the  end  but  in  the 
means.  They  are  resolved,  not  only  to  be  freemen  at  the 
termination  of  the  contest,  but  will  not  surrender  their  liberties 
during  its  progress.  Nor  will  \hey  be  satisfied  with  the  flimsy 
pretexts  and  excuses  for  the  sacrifice  of  a  sacred  principle, 
that  it  can  do  no  harm  except  to  traitors.  They  intend  that 
even  traitors  shall  not  be  condemned  except  in  accordance 
with  those  great  principles  of  right  and  justice,  which  are  of 
universal  application.  For  they  know  full  well  that  it  is  upon 
the  persons  of  friendless  or  odious  men  that  despotism,  whether 
of  a  single  tyrant  or  of  a  mob,  first  laj's  its  hands ;  and  that 
vigilance  is  more  necessary  to  the  preservation  of  liberty  in 
times  of  public  peril  and  revolution,  than  in  peace.  Now, 
Sir,  you  can  hardly  mention  a  guarantee  of  individual  right 
contained  in  that  immortal  declaration  prefixed  to  the  consti- 
tution, which  is  not  outraged  by  the  proposed  proceeding  in 
relation  to  a  test  oath.  Let  me  particularize  a  few  of  the  more 
prominent  among  them  : 

1.  Contrary  to  the  very  words  of  that  declaration,  it  "dis- 
seizes every  freeman  "  and  every  boy  too  above  the  age  of 
sixteen,  of  his  privileges  as  a  citizen,  and  converts  him  into 
an  alien,  and  exiles  him  until  he  shall  re-establish  his  right  to 
citizenship  by  taking  the  oath  of  allegiance,  defense,  and  of 
abjuration  of  the  government  of  the  United  States,  already 
recited  ;  a  high-handed  outrage  in  subversion  of  "  the  law  of 
the  land,"  the  only  process  by  which  so  dreadful  a  sentence 
eonld  be  inflicted — and  it  is  well  known  that  "by  law  of  the 
land"  here,  is  meant  a  regular  trial  before  Judge  and  jury, 
according  to  the  course  and  usage  of  the  common  law. 

2.  It  convicts  a  freeman  of  a  crime,  the  high  crime  of  dis- 
loyalty to  the  government,  by  an  act  of  attainder  passed  by 
this  Convention,  and  subjects  him  to  the  punishment  of  being 
banished,  unless  he  shall  acquit  himself  by  an  oath— the 
declaration  guaranteeing  that  no  such  conviction  shall  be  had 
*'  but  h}7  the  unanimous  verdict  of  a  jury  of  good  and  lawful 
men  in  open  court,  as  heretofore  used." 

3.  Without  any  evidence  of  an  offense  having  been  com- 
mitted, and  without  any  offense  being  described  in  a  warrant 
and  supported  by  evidence,  it  considers  a  tree  citizen  as  con- 
demned, and  exiles  him  from  his  sacred  home,  unless  he  will 


u 

disclose  the  secrets  of  his  heart,  and  they  are  found  to  be 
patriotic,  by  a  Justice  of  the  Peace. 

4.  In  a  highly  criminal  proceeding,  it  compels  a  man  to 
give  evidence  against  himself  This  hideous  feature  is  a  little 
disguised,  but  it  is  unquestionably  there.  If  he  wiH  swear 
the  oath  he  goes  free,  but  if  he  will  not,  his  refusal  is  plenary 
evidence  of  his  guilt,  and  he  suffers  the  dread  penalty.  This- 
refusal  he  is  forced  to  give  if  his  conscience  will  not  allow 
him  to  take  the  oath.  Wherein  does  this  differ  from  that  old 
device  of  bigotry  and  cruelty  of  putting  him  on  the  wheel 
and  cracking  his  bones  until  he  shall  declare  that  he  is  not 
guilty  of  heresy  or  treason  i  In  nothing  that  I  can  perceive,, 
except  that  in  the  one  case  he  suffers  in  the  flesh,  and  in  the 
other  it  is  expulsion  from  wife  and  children,  and  friends,  and 
country. 

Mr.  President,  when  my  friend,  Charles  S.  Morehead,  of 
Kentucky,  as  noble  and  gallant  a  gentleman  as  any  that  1 
have  ever  known,  was  seized  on  his  native  soil  and  hurried  off 
to  a  prison  in  a  far  distant  State,  upon  an  alleged  order  from 
the  Secretary  of  State  at  Washington,  I  thought,  not  that 
"ten  thousand  swords  would  have  leaped  from  their  scab- 
bards," but  that  the  Mississippi  valley  would  have  risen  as  one 
man,  and  cried  "  to  the  rescue."  American  constitutional 
freedom  had  been  struck  down  in  the  person  of  one  of  the 
noblest  of  her  sons;  and  I  supposed  that  without  regard  to 
past  differences  of  opinion  as  to  whether  the  Union  should  be 
maintained,  all  men  would  have  been  satisfied  by  that  act  of 
tyranny,  that  the  free  Constitution  of  our  fathers  was  extinct; 
that  arbitrary  power  reigned  in  its  stead  ;  and  that  safety  was 
only  to  be  found  in  the  overthrow  of  that  power.  But  that 
proceeding,  violent  and  revolting  as  it  was,  may  be  favorably 
distinguished  from  this.  Morehead  was  not  required  to  give 
evidence  against  himself.  The  government  which  arrested 
him,  professed  to  have  had  sufficient'  proof  of  his  guilt,  and 
did  not  call  upon  him  under  penalty  of  exile,  forfeiture  or 
torture,  to  furnish  any  evidence  either  positive  or  negative  to 
effect  the  case.  Sir,  I  think  it  now  appears  that  the  oath  in 
question  requires  some  emendation.  The  citizen  ought  to  be 
excused  from  swearing  to  support  the  Constitution  of  North 
Carolina,  as  heretofore  existing,  since  the  whole  proceeding 
violates  so  many  of  its  fundamental  principles,  as  in  fact,  to 
abrogate  it.  He  might  with  more  propriety  be  called  on  to 
take  an  oath  of  abjuration,  declaring  that  he  had  no  faith  in 
the  bill  of  rights,  as  a  means  of  securing  freedom,  and 
renouncing  his  adherence  to  it,  at  least,  in  all  cases  where 
disloyalty  was  imputed.     That  would  be  far  more  appropriate 


15 

than  that  other  oath  of  abjurationy  "renouncing  '  hereby ' 
all  allegiance  to  the  United  States;"  implying  in  the  clearest 
manner  that  until  the  oath  is  taken,  allegiance  is  still  due  to 
the  United  States — a  folly  that  will  excite  a  laugh  wherever 
it  is  not  taken  as  an  insult.  The  citizen  will  say,  I  protest  that 
I  thought  all  this  was  settled  in  May  last,  by  the  Convention. 
I  have  not  considered  myself  as  owing  any  allegiance  to  the 
United  States,  since  that  time,  and  I  have  none  that  I  can 
"hereby"  renounce.  With  nearly  as  much  reason  might 
he  be  required  to  renounce  all  allegiance  to  Victoria  Regina, 
successor  of  the  Georges  second  and  third,  of  whom  our 
fathers  were  born  subjects^  and  to  abjure  the  heresy  of  tran- 
snbstantiation,  the  invocation  of  saints,  and  Popery  in  general, 
as  the  Englishmen  who  to"ok  office  were  required  to  do  prior 
to  Catholic  emancipation.  And  the  power  being  established,. 
as  it  is  assumed  by  this  ordinance,.it  would  be  the  easiest  thing 
in  the  world  to  superadd  a  mild  adjuration,  to  abide  by  the 
creed  as  established  by  the  Convention j  Synod,  Conference  or 
Association,  as  one  or  another  denomination  might  happen, to 
predominate  with  the  ruling  powers. 

And  here  let  me  correct  a  very  important  error  of  fact 
which  appears  in  the  committee's  report.  It  is  there  stated 
that  our  volunteers  who  have  entered  the  military  service  have 
taken  an  oath,  and  it  is  argued,  that  therefore  all  other  citizens 
should  enter  into  the  like  solemn  obligation.  The  conclusion 
would  not  follow,  if  the  oath  were  the  same.  Soldiers  received 
into  the  service  and  pay  of  the  State  or  nation,  like  public 
servants  in  civil  office,  have  always  been  required  to  take  an 
oath  of  allegiance,  but  citizens  in  general  never  were.  In 
fact,  however,  no  volunteer  has  taken  the  absurd  oath  here 
proposed  to  be  thrust  upon  the  citizen.  They  have  not  been 
required  to  abjure  allegiance  "to  the  government  of  the 
United  States."  They  are  bound  to  take  an  oath  of  allegiance 
to  the  State.  And  under  an  act  of  Assembly  in  May  last,  the 
Governor  prescribed  an  oath,  by  which  they  undertook  "  to 
obey  his  orders,  and  the  orders  of  the  officers  set  over  them."' 
But  by  ordinance  of  this  Convention  they  were  relieved  from' 
an  oath  of  this  nature,  which  no  man  could  be  expected  to 
keep  without  some  infringement,  and  which  had  been  disused. 
in  the  army  of  the  United  States,  prior  to  the  Mexican  war,, 
and  since;  and  they  were  simply  made  liable  to  the  penalties 
of  the  articles  of  war,  for  disobedience  of  orders,  from  the- 
time  of  signing  the  agreement  of  enlistment.  No  volunteer 
of  North-Carolina,  therefore,  can  be  lawfully  required  to  take 
any  oath,  but  tlie  oath  of  allegiance  to  the  State,  anterior  to 
his  being  mustered  into  the  service  of  the  Confederate  States, 


16 

That,  let  us  remember,  is  a  government  with  Legislative, 
Executive,  and  Judicial  functionaries,  in  full  operation,  and 
can  prescribe  and  administer  such  oaths,  as  to  it  may  seem 
meet,  to  soldiers ;  and  if  it  wishes  to  try  so  hazardous  an 
experiment,  to  citizens  also.     Our  interference,  then,  to  bind 
the  consciences  of  our   citizens  to  that  government,  after 
having  granted  it  power  of  life  and  death  over  their  conduct, 
is  quite  a  work  of  supererogation,  if  not  of  servility.     In  its 
Constitution,  Art.   6,  sec.  4,  it  has  plainly  enumerated  the 
persons  in  the  State  and  Confederacy,  whom  it  requires  to  take 
the  oath  to  support  it.     If  it  desires  to  enlarge  the  catalogue, 
by  polling  every  citizen,  to  search  his  heart,  and  see  if  it  can- 
not find  somebody  to  punish  as  a  traitor,  let  it  try  the  virtue 
of  an  act  ot  Congress,  and  the  machinery  of  its  own  officers. 
That  would  give  the  regulation  generality,  and  relieve  it  of 
one  of  its  features  of  hatefnlness,  that  of  being  leveled  at  the 
people  of  a  particular  State,  and  this  by  the  ofticionsnessof 
the  State  authority  in  a  matter  committed  by  the  people  to 
other  hands.     For,  I  suppose,  no  one  imagines  that  there  is 
any  danger  of  rebellion  against  the  State  government  as  such. 
The  whole  solicitude  which  prompts  this  most  extraordinary 
measure,  springs  from  an   apprehension  of  infidelity  on  the 
part  of  the  people,  or  a  portion  of  them,  to  the  Confederate 
government — and  it  implies  that  that  government  is  too  weak 
or  its  functionaries  too  timid  to  provide  and  apply  the  needful 
remedies.     We,  therefore,  must  rush  in  to  the  help  of  the 
nation.     If  Congress  were  consulted,  I  doubt  not  they  would 
render  thanks  for  the  good  and  patriotic  intention,  but  if  they 
spoke  candidly,  would  declare  that  they  considered  the  remedy 
ten  times  as  bad  as  the  disease.     No,  Sir — the  Congress  would 
as  soon  think  of  repealing  the  Constitution,  and  dissolving 
into  a  state  of  chaos,  as  to  undertake  this  process  of  the  polling 
and  purgation  of  the  whole  people.     Nor  has  any  other  State 
proposed  or  conceived  it.     They  know,  that  if  serious  disaf- 
fection does  not  exist,  (as  every  one  knows  it  does  not  in  North 
Carolina,)  this  is  a  way  in  which  the  government  may  readily 
be  brought  into  contempt  and  collision  with  the  people;  and 
that  if  it  did,  this  is  not  the  mode  in  which  to  deal  with  it.    Lord 
Macauley  relates  of  James  II,  that  he  never  learned  how  to 
treat  an  insurrection,  which  common  sense  teaches  should  be, 
by  taking  hold  of  the  ring-leaders  and  making  examples  of 
them, — but  on  the  happening  of  such  an  occurrence,  he  seized, 
tried  and  executed  the  unhappy  insurgents,  of  all  ages  and 
sexes;   and  while   his  servile  and    tyrannical  chief    justice, 
Jeffries,  went  the  circuits  perverting  the  law  for  the  condem- 
nation of  all  accused,  the  moody  monarch  diverted  himself 


li 


among  his  parasites  and  courtiers  by  speaking  of  them  as 
Jeffries'  campaigns.  Sir,  the  progress  of  your  justices  under 
this  ordinance,  abjuring  men  and  boys,  without  regard  to  the 
aged,  the  decrepid,  the  halt,  maimed  or  blind,  under  terror  of 
exile  or  degradation, from  the  proud  privileges  of  citizenship, 
will  be  looked  upon  by  those  who  have  the  instincts,  not  to  say 
knowle  !ge  of  freemen,  as  no  less  of  campaigns;  and  with  no 
view  to  favor  the  public  enemy,  but  to  assert  their  self-respect 
and  dignity,  they  will  strive  to  hurl  from  power  the  authority 
under  which  they  are  made.  What,  Sir,  is  such  a  proceeding 
but  the  establishment  of  martial  law  throughout  the  length 
and  breadth  of  the  State,  by  which  the  peaceful  citizen  is 
invaded  in  his  home  and  his  conscience,  and  placed  upon  the 
footing  of  the  inhabitant  of  a  besieged  city  or  fortress,  or  of 
n  conquered  rebellious  province?  A  Iioman  pro-consul,  a 
British  colonial  Governor,  or  a  successful  General  in  the  armiea 
of  Abraham  Lincoln,  with  an  overwhelming  force  and  but 
feeble  resistance,  may  adopt  measures  of  such  dictatorial 
severity  and  rigor.  W£  are  informed  that  Governor  Try  on, 
after  overpowering  the  Regulators  at  Alamance,  marched  a 
military  force  into  many  of  the  upper  counties  of  the  then, 
province,  and  exacted  from  the  inhabitants  an  oath  of  allegi- 
ance to  the  King  at  the  point  of  the  bayonet.  Gen.  Dix,  also, 
upon  his  recent  conquest  of  the  two  counties  on  the  eastern 
shore  of  Virginia,  condescended  to  advertise  their  helpless 
citizens,  that  if  they  would  take  the  oath  of  allegiance  to  the 
United  States,  they  should  receive  every  protection,  and  their 
property  should  not  be  confiscated.  This  was  a  sufficient  hint 
what  consequences  would  follow  if  they  did  not.  But,  who 
before  ever  heard  of  a  government  professing  to  be  free,  under- 
taking to  drive  from  its  borders  or  disfranchise  its  whole  pop- 
ulation, if  they  would  not,  man  by  man,  submit  to  the  ordeal 
of  a  compulsory  test  oath?  Kay,  what  arbitrary  despotism  in 
its  domestic  rule,  ever  embarked  in  any  such  enterprize  of 
Quixotic  absurdity  ?  Was  it  attempted  in  France  under  the 
first  Napoleon,  or  under  the  third  \  Even  in  the  wildest  excesses 
of  her  revolutionary  phrenzy,  there  seems  to  have  been  suffi- 
cient common  sense  left  to  the  ruling  authorities  to  enable  them 
to  recollect,  that  "human  law  is  a  rule  of  civil  conduct"  not 
of  faiths  and  that  only  bigotry  and  fanaticism  will  attempt  to 
regulate  conscience  and  opinion  in  government  or  in  religion 
Charles  V.,  Emperor  of  Germany  and  Spain,  after  waging  for 
years  the  most  bloody  and  relentless  wars,  to  put  down  Lnther 
and  the  Reformation,  becoming  sated  with  carnage,,  and  dis- 
gusted with  the  pageantry  of  monarchy,  yielded  up  the  reins 
to  hie  son,  and  retired  to  a  monastery.  There,  he  amused  his 
2 


18 

leisure  in  scientific  studies,  and  in  experiments  upon  instru- 
ments for  measuring  time.     But  by  no  diligence  or  skill  was 
he  ever  able  to  make  two  clocks  run  alike.     This,  says  his 
biographer,  Dr.  Robertson,  saddened  his  soul  with  remorseful 
reflections  upon  his  previous  life,  in  which  he  had  caused  rivers 
of  blood  to  flow,  in  vain  and  wicked  efforts  to  compel  men  to 
think  alike.     This  simple  anecdote,  which  is  but  an  illustration 
of  all  human  experience,  proves  the  futility  and  impossibility 
of  controlling  thought  and  opinion:  and  that,  those  govern- 
ments only  are  wise  that  leave  the  mind  and  conscience  free, 
and  are  content  with   conformity  to  their  behests,  in  action. 
Of  the  one  hundred  and  twenty  thousand,  voters  in  the  State, 
how  many  in  the  eighty-five  years  of 'its  independence  have 
taken  an  oath  to  the  State,  or  to  the  United  States,  during  our 
connection  with  that  government?     Those  who  have  filled 
office,  and  exercised  a  portion  of  the  sovereign  power  as 
magistrates  or  constables,  or  in  the  higher  stations,  have  been 
obliged,  and  properly  too,  to  swear  fidelity  to  the  State  and 
general  goverement ;  but  as  to  the  great  mass  of  the  people, 
if  they  have  not  literally  kept   the  Scriptural  injunction  to 
"swear  not  at  all,"  it  has  not  been  by  reason  of  "any  oath  of 
fealty  imposed  by  public  authority.     And  the   inquiry  will 
naturally  be  made,  where  is  the  necessity  for  this  novel  and 
most  extraordinary  proceeding  ?    The  Legislature  has  been 
>wice  convened  in  extra  session  since  the  breaking  Out  of  the 
^present  war,  and  has  considered  and  adopted  such  measures  as 
thr3y  deemed  necessary  to  the  public  safety  or  defence.     But 
no  member  of  either  House,  in  anxious  contemplation  of  the 
.  crisis,  seems  to  have  thought  of  a  test  oath,  forced  upon  all 
the  people,  under  terror  of  exile  or  loss  of  privilege,  as  among 
these  measures.     Cresar  Augustus  sent  out  a  decree  that  all 
the  world  should  be  taxed.     Iho  Xorth  Carolina  Convention 
is  asked  to  send  out  a  decree  that  all  the  world  shall  be  sworn. 
There  is  virtue  in  taxation.    'Money  is- the  sinews  of  war— but 
what  nation  was  ever  defended  by  <,aths, — -oaths  imposed  on 
its  own  people  without  distinction,  especially  when  the  alter- 
native was  banishment  or  degradation  % 

Mr.  President,  to  say  of  this  measure  that  it  is  absurd  and  cal- 
culated to  bring  ridicule  on  our  legislation,  and  that  it  is  un- 
necessary, and  will  be  wholly  ineffectual,  if  necessary,  inas- 
much as  a  forced  oath  is  well  understood  to  be  no  oath  in  the 
sight  of  man  or  his  Maker,  is  but  to  characterize  its  more  ob- 
vious features.  I  am  full}'  pnrsuaded  that  abroad,  if  not  at 
home,  it  will  be  regarded  as  the  offspring  of  fear.  It  will  be 
argued,  and  thpaiypothesis  cannot  be  resisted,  that  a  proceed- 
ing so,  universal* go  unusual,  so  searching,  so  destructive  of 


X 


19 

ersonal  freedom  and  dangerous  to  public  liberty,  would  not 
e  resorted  to  except  in  a  State  where  public  sentiment  was 
suppressed  by  the  high  hand  of  force,  and  a  sense  of  danger 
had  driven  the  government  to  desperation.  In  that  aspect  no 
:re  could  give  greater  encouragement  to  the  enemy,  and 
no  libel  could  more  deeply  wound  the  sensibilities  of  the  peo- 
ple of  the  State,  or  do  them  more  gross  injustice.  They  have 
k'oked  upcn  the  pending  contest  as  a  foreign  war,  of  nation 
3t  nation,  waged  upon  the  frontiers  b}r  national  armies. 
But  you  propose  by  this  ordinance,  to  declare  it  a  civil  and 
war,  in  which  no  man  is  to  be  trusted — in  which  the  se- 
cret of  the  right  hand  may  be  concealed  from  the  left,  until 
yon  have  cleansed  out  the  conscience  and  made  assurance 
doubly  sure  by  a  forced  oath.  It  is  not  enough  that  35,00*) 
men,  portions  of  them  from  every  county  in  the  State,  are  in 
t  tlie  £  old.  exposing  their  lives  to  the  arms  of  the  enemy,  and 
to  the  pestilence  of  camp  and  garrison,  and  that  almost  every 
family  has  its  representative  there  ;  that  they  have  submitted 
cheerfully  to  the  btirderis  of  taxation,  and  the  privation  inci- 
dent to  a  destruction  of  commerce,  and  have  over  and  above 
this,  voluntarily  and  cheerfully  contributed  of  their  labor, 
their  substance  and  the  very  comforts  of  their  homes,  to  give 
aid  to  your  soldiers*  and  vigor  to  their  efforts;  that  there  is 
not  a  cloud  of  disloyalty  to  be  seen  in  all  the  horizon  as  big 
as  a  man's  hand  ;  but  that  the  whole  people,  it  may  be  with 
trifling  exceptions,  are  pressing  forward  with  a  noble  unanim- 
ity to  the  establishment  of  our  national  independence.  All 
this  will  not  suffice.  Every  man  must  be  purged  as  by  fire. 
And  all  for  what  ?  The  report  of  the  committee  informs  us. 
It  is  '"  is  rid  the  country  of  traitors  at  heart,"  who  are  suppo- 
sed to  be  few  in  number,  and  will  be  discovered  when  tested 
by  this  oath.  Such  doctrine,  Mr.  Paesideut,  is  the  very  big- 
otry of  despotism.  Who  constituted  us  the  searchers  of 
hearts ?  "What  government  ever  undertook  to  deal  with  any 
thing  as  crimes,  except  the  overt  acts  of  its  people,  but  the 
most  an  mitigated  tyrannies?  There  are  doubtless  republican-* 
In  principle  residing  under  every  monarchy  in  Europe,  and 
there  may  be  monarchists  in  the  States  of  America,  but  so 
lor g  as  they  demean  themselves  as  peaceable  citizens,  do  B&fc 
levy  war  against  the  State  or  the  Confederate  States,  nor  ad- 
here to  our  enemies  giving  them  aid  and  comfort,  they  pass 
without  molestation,  and  are  under  the  protection  of  the  Con- 
stitution and  laws.  If  there  be,  as  the  committee  presumes, 
traitors  among  us,  they  are  not  of  my  acquaintance,  nor,  so 
far  as  I  am  aware,  of  my  section.  But  wherever  they  are, 
treason  is  an  offense  well  known  to,  and  defined  by  law,  and 


20 

like  other  crimes,  is  to  be  dealt  with  according,  to  law.    And 
it  is  quite  remarkable,  that  while  the  committee  inveigh  with 
vehemence  against  the  despotism  now  practiced  by  the  Lin- 
coln government  in  Maryland,  they  should  bring  forward  a 
measure  equally  ahorrent  to  freedom  in  Xorth-Carolina.    Sir, 
if  such  a  measure  prevails  and  is  acquiesced  in,  it  is  of  little 
moment  what  may  be  the  issue  of  the  present  great  conflict 
in  the  battle-field.     We  shall  in  the  end  be  in  any  event  slaves,. 
and  present  the  sad  spectacle  of  a  State  throwing  away  its 
liberties  in  a  struggle  to  preserve  them,  in  angry  imitation  of 
the  contagious  example  of  an  enemy  who  threw  away  theirs, 
to  give  vigor  to  their  efforts  for  our  subjugation.     I   protest 
against  it,  as  a  gross  abuse,  amounting  in  effect  to  a  usurpa- 
tion ot  power— as  a  dangerous  device  by  which  a  faction  may 
at  any  time  pervert  the  government  and  transmute  it  into  an 
oligarchy.     I  protest  against  it  in  the  name  religious  freedom 
and  domestic  quiet — in  the  name  of  that  civil  liberty  which 
Is  our  birthright,  and  has  been  the  inheritance  of  our  ances- 
tors for  eight  hundred  years.    I  protest  against  it  as  a  weak  and 
futile  weapon  of  defence,  calculated  only  to  encourage  the 
enemy,  weaken   ourselves,  and  to  bring  our  legislation  into 
ridicule  and  disrespect  at  home  and  abroad,  and  degrade  our 
citizens  in  their  own  estqem — as  an  officious  intermeddling 
with  the  province  of  the  Congress  of  the  Confederate  States- 
i — as  a  libel  upon  the  people  we  represent,  whose  noble  alac- 
rity, patience,  perseverance,  self-denial  and   bravery  in  this 
contest  deserve  all  praise.     Whereas,  the  statute  book,  in  the 
present  times,  and  much  more  in  the  future,  in  all  historical 
interpretation  must  be  construed  to  imply  an  imputation  of 
wide-spread  disaffection.     I  protest  against  it,  finally,  as  an 
imitation  of  iNorthera  despotism,  outstripping  its  model — no 
ether  State  of  the  South  having  conceived  such  an  idea,  though 
in  several  of  them  disaffection  not  only  is  rife,  but  treason 
stalks  abroad  in  arms. 

But  the  committee  plants  itself  on  a  precedent  in  an  act  of 
the  General  Assembly  of  1777,  and  says  all  the  material  parts 
of  this  ordinance  are  copied  from  that  act.  Precedents  in  the 
pleadings  of  the  law  are  said  to  be  dangerous  things,  if  one 
does  not  know  how  to  fill  up  the  blanks;  and  statutory  pre- 
cedents are  equally  fallible  and  deceptive  as  guides  to  politi- 
cal action,  if  we  shut  our  eyes  to  the  circumstances  and  sur- 
roundings ot  historical  facts  which  distinguish  former  times 
f.'om  our  own.  Let  me  inquire  of  the  committee,  whose 
chairman  holds  a  high  judicial  station,  whether  this  ordinance 
does  not  contravene  the  Bill  of  Eights  and  Constitution  in  the 
particulars  I  have  enumerated,  and  if  it  does,  whether  a  simi- 


21 

lar   act,  passed  in  1777,  by  the  General    Assembly,  did   not 
equally  contravene  it — and  when  an   act  of  the  General  As- 

ibly  does  come  in  conflict  with  the  Constitution,  which  is 
to" give  way?  He  is  obliged  to  answer,  the  act  of  Assembly^ 
Of  course.  But  it  was  not  so  understood  in  1777.  The  opin-i 
ic>7i  seems  to  have  prevailed  then,  and  for  years  afterwaj  Is, 
that  the  General  A~  as   omnipotent  as  the  British 

Parliament,  and  when,  in  1786,  the  courts  of  justice  decided 
an  act  of  the  Legislature  to  be  unconstitutional,  it  produced  a 
great  shock  in  the  minds  of  highly  intelligent  men.  This  act 
of  1777.  which  undertook  to  banish  freemen  who  were  inhab- 
itants of  the  State  at  the  adoption  of  the  Constitution,  or  to 
deprive  them  of  the  right  of  suffrage  if  they  refused  to  take 
aft  oath  oi'  allegiance,  was  clearly  unconstitutional,  not  only 
in  the  points  already  specified,  but  in  assuming  to  take  away 
the  right  of  suffrage  in  the  face  of  the  provision  of -the  Gon 
stitution  declaring  that  all  freemen  31  years  of  age,  who  have 

i   inhabitants  a  6e  rial  ft  time,  and  paid  public  taxc 
exercise   it.      But,   waiving  the   eonstdus  ■•!,   the 

situation  of  our  ancestors  in  1776-7,  diii7  ■  om 

i  at  this  time,  in  many  particulars  to  their  disadvantage  ; 
■  in  thQ  poverty  of  their  resources,  and  newness  of  their 
experiment,  it  should  not  surprise  us  that  they  laid  hold  of  a 
test  oath  as  a  weapon  with  which  bigotry  and  arbitrary  power 
had  sought  to  fortify  themselves  in  Europe,  hoping  they  could 
render  it  useful  in  the  defence  of  freedom  here.  They  may 
possibly  have  thought  that  as  allegiance  under  a  monarch  is 
viae  to  the  person  of  the' sovereign,  it  might  still  linger  in  the 
breasts  of  some,  and  that  this  violent  remedy  should  be  resorted 
to  for  its  expulsion."  But  before  we  are  called  on  to  follow 
this  as  a  precedent,  it  should  be  shown  from  subsequent  history 
that  it  was  of  some  avail  in  the  contest.  It  was  provided  HI 
the  act  that  the  name  of  every  person  taking  it  should  be  sub- 
scribed in  a  book,  to  be  deposited  in  the  office  of  the  Clerk  of 
the  Count}'  Court.  Who  has  ever  seen  such  a  book?  The 
honorable  gentleman  from  Mecklenburg,  JVIr.  Osborne,  who 


f  Note. — On  looking  into  4th  Blackstone's  Com.  p.  124,  it  will  be  seen, 
that  the  whole  of  this  statute©?  1777,  in  relation  to  a  test  oath  and  banish- 
ment, or  disfranchisement  as  a  citizen,  is  literally  copied  from  the  statute  cf 
George  1st  against  Popish  reeusantg.  So  that  the  ordinance  of  the  c>  m- 
mittee  is  but  a  copy  of  an  act  of  1715.  applying  a  religious,  test  to  Papists 

5pt  that  in  the  former  case  two  Justices  of  the  Peace  were  in,  e  I 
wifcft  power  >Lto  tender  the  oath  to  any  person  whom  they  shall  suspect  ta 

iffected,"  and  in  our  case  every  person  is  treated  as  if  suspect*:-  id 
tendered  the  oath  accordingly.  Blaskstone  says  the  penalties  arc  jjctbing 
shore  of  s.  pr-xuiurdre, 


22 

lias  just  taken  his  seat,  lias  made  considerable  researches  in 
the  public  papers  of  his  county,  which  is  one  of  historical 
renown  ;  has  he  ever  found  such  a  book?  Have  you,  Sir.  or 
any  other  gentleman  here  ?  One  of  two  conclusions  is  certain. 
Either  that  there  was  no  general  attempt  to  exact  such  an  oath, 
which  is  the  more  probable;  or,  that  if  exacted,  it  had  not' 
the  least  effect.  For  when  the  British  invaded  the  State  in 
1780-'81,  the  Tories  rose  in  those  sections  where  they  were 
known  to  be  in  the  outset  of  the  war,  and  in  no  other.  The 
act  was,  therefore,  as  characterized  by  the  gentleman  from 
Kichmond,  Mr.  Leake,  hrutum  fulmen,  producing  no  effica- 
cious result.  With  the  men  of  1776-%  there  was  a  total 
change  of  government,  and  of  the  administration  of  govern- 
ment. With  them  "old  things  had  passed  away,  and  all  things 
had  become  new."  There  was  no  general  government  on 
which  to  rely  for  general  defence  and  welfare.  The  States 
were  united  only  by  certain  articles  of  association.  And  in 
2STorth-Carolina  a  State  government  just  formed,  with  no  laws 
or  officers  to  administer  tbem,  except  what  they  enacted  and 
appointed  in  the  pressure  of  the  emergency,  was  their  sole 
reliance  in  general  and  domestic  concerns.  They  had  to  pro- 
vide for  treason,  sedition,  and  every  crime  in  the  calendar, 
and  it  is  in  a  statute  concerning  treason  that  the  committee 
has  found  the  model  of  this  ordinance.  Now,  Sir,  if  so  much 
weight  is  due  to  a  precedent,  why  not  re-enact  the  whole  stat- 
ute, that  part  which  relates  to  treason  as  well  as  misprison  of 
treason  and  test  oaths?  That  is  the  only  part  of  the  statute 
that  we  have  heard  of  being  put  into"  execution.  The  Tory 
Colonel,  Bryan,  was  tried  for  treason,  and.  convicted,  I  pivsumej. 
under  this  statute.  But  he  had  a  trial  by  due  course  of  law. 
He  was  not  called  on  to  lurnish  evidence  against  himself  by  a 
test  oath,  and  he  was  defended  by  Davie,  who  had  slaughtered 
a  large  part  of  his  regiment  in  battle,  but  who,  after  the  exam- 
ple of  John  Adams  in  defending  the  British  soldiers  who  fi'i  ed 
on  the  multitude  in  the  streets  of  Boston,  was  equally  firm  in 
asserting  all  his  rights  of  defence,  as  a  criminal.  But  who 
ever  heard  of  a  trial  for  misprision  of  treason  or  sedition,  or 
the  general  enforcement  of  a  test  oath  upon  any  but  suspected 
persons  ?  The  Revolution  of  the  20th  of  'May  last,  was  under 
wholly  different  circumstances.  What  our  fathers  did  in 
weakness  we  have  done  in  strength.  In  the  State  govern- 
ment, with  the  same  Constitution,  the  same  laws,  the  :  ;miio 
officers  in  all  its  departments  and  ramifications,  there  has  been 
no  change  that  would  cause  a  ripple  on  the  surface  of  the 
waters.  The  ship  of  State  has  sailed  on  in  her  great  career  of 
justice,  without  reefing  a  sail  or  changing  a  spar.     In  national 


affairs  the  difference  is  still  more  remarkable.  Instead  of  no 
general  government,  and  a  dependence  on  the  discordant 
legislation  of  thirteen  States,  we  find  a  Constitution  of  national" 
.government  copied  almost  literally  from  the  Constitution  of 
the  United  States,  in  full  and  vigorous  operation,  with  a  Pres- 
ident, Congress  and  Judiciary — defending  our  cause  with 
an  ;:i r.iy,  in  effectiveness,  if  not  in  numbers,  such  as  the  pop- 
ulous North  never  poured  on  the  Rhine  or  the  Danube,  or  the 
sunny  plains  of  Italy — with  treason  defined  in  the  Constitu- 
tion for  the  security  of' the  citizen  as  well  as  safety  to  the 
government— with  the  possible  power  to  pass  sedition  and  test 
laws  for  its  defence,  like  as  the  State  governments,  but  like 
those  governments  abstaining  from  the  use  of  them,  as  the 
cast-off  paraphernalia  of  despotism.  To  think  of  bringing  a 
State  test  oath  into  play  as  a  means  of  defence  in  such  a  pos- 
ture of  affairs,  upon  a  precedent  of  an  unconstitutional  act  of 
Assembly  in  1777,  is  to  way  mind,  as  if  one  should  propose,  in 
the  midst  of  rifled  cannon  and  all  the  advancement  and 
improvements  in  modern  warfare,  to  return  to  the  bow  and 
poisoned  arrow  of  the  savage,  because  the  Aborigines  had 
used  them  in  the  earliest  wars  of  this  continent.  Let  them, 
both  be  consigned  where  the}T  belong,  to  the  curious  investi- 
gations of  the  antiquarian  ;  but  let  us  hear  no  more  of  thein 
in  the  enlightened  legislation  of  a  free  people. 

Mr;  President,  there  is  one  diversity  in  the  two  revolutions, 
which,  when  Drought  to  notice,  must  convince  all  that  there  is 
the  least  analogy  imaginable  in  the  two  cases  ;  and  that  is  in  the 
persons  called  to  fill  office  upon  the  change  of  government. 
Our  ancestors  would  as  soon  have  thought  of  electing  Lord 
Korth  to  the  office  of  Governor  as  of  recalling  Governor 
Martin  or  Governor  Trvon,  and  of  bringing  over  Lord  Mails- 
field  with  his  high  tory  principles  lq  their  chief  justiceship,  as 
to  have  appointed  one  of  the  late  Kings'  Judges.  Whereas", 
our  State  officers,  as  we  have  seen,  have  been  unchanged  m 
a  single  particular  ;  and  in  appointments  to  office  under  the 
Confederacy,  it  has  been  no  objection  that  tlie  appointee  held 
a  similar  appointment  with  a  regular  commission  and  oath  of 
office,  and  received  its  emoluments  from  the  Federal  Treasury 
to  the  las;-  pay  day,  before  the  Proclamation  of  the  18rh  of 
April,  Now  Sir,  in  the  .Revolution  of  1776,  this  would  not 
have  been  permitted.  The  first  persons  on  whom  the  act  of 
1777,  to  which  the  committee  refers  in  terms  of  such  high 
.-approbation,  laid  its  hands  and  required  to  be  sworn,  were  all 
the,  late-  ojice  s  of  the  King  of  Great  Britain.  They  were  put 
before  the  "  traders  who  had  been'  making  voyages  to  England 
within  ten  years  then  last  past."     There  are  many  copies  of 


24 

Iredell's  Eevisal,  stowed  away  in  the  houses  of  the  people  of 
the  country:  and  when  they  are  informed  that  the  precedent 
for  this  ordinance  is  to  be  found  there,  they  will  brush  the  dust 
from  the.  old.  book  and  re&d  it  for  themselves.  And 
la  is  to  be  executed  so  rigorously  on  them,  they  will  demand 
to  know  whether  you  began  at  the  beginning  and" cleared  out 
all  who  held  office  under  the  lata  government';  and  when 
they  are  told  no;  such  person's  have  been  considered  eligible 
;  ce  under  the  new  government,  and  no  questions  a 

they  will  scout  the  precedent  of  1777,  and  say  if  we  are  : 
purged  with   this  great   oath  or  leave  the  country,  those  who 
held  the  offices,  and  received  their  compensations  under  the 
eld  government,  should  take  a  dose  that  would  uubreach  a 
cannon,  at  least   before  they  are  trusted  with  official  p» 
lapprehend,  Sir,  --when  the  subject  is  viewed  in  this  li 
n         ,  though  the}-  have  not  slept  for.  the  lasj;  year  like  flip 
Van  Winkle,  may  cor;  ?  conclusion  that  there  lias  been 

no  very  violent  revolution  abc-r  all,  and  that  if  there  has,  such 
t  -rearing  is  not  Christian-like  or  decent, 

J   : ■'.  ent,  the  first  and  second  sections  of  this  ordi- 

nance are  scarcely  less  objectionable  than  what  I  have  been 
considering.  The  report  of  the  committee  informs  us,  that 
the  offences  therein  enumerated,  and  which  the  committee 
calls  sedition,  were  in  the  act  of  1777,  called  misprision  of 
treason.  It  is,  therefore,  reviving  an  obsolete  high  crime 
under  a  new  and  milder,  name.  The  American  world,  at 
least,  has  made  some  progress  as  to  these  crimes  of  Lam 
Ma  est;/,  treason,  misprision  of  treason,  etc.,  since  1777.  It 
was  a  great  point  gained  for  human  life  and  liberty,  that  in 
the  Federal  Constitution  of  17*7,  treason  was  defined  to  con- 
sist only  in  levying  war  against  the  United  States,  or  in  adher- 
ing to  their  enemies,  giving  them  aid  and  comfort  ;  a  pro  vision 
that  has  been  literally  copied  in  the  Constitution  of  the  Con- 
federate States — and  by  an  ordinance  of  this  body,  into  that 
of  this  State  also.  It  is  enough  to  make  the  blood  run  cold, 
now  to  review  the  history  of  what  were  at  different  times 
denominated  and  adjudged  treason  in  England,  and  to  remem- 
ber what  hetacombs  of  human  victims  the  fluctuating  state  of 
the  law,  and  its  pliant,  and  corrupt  apministrntion,  to  favor  the 
views  ot  the  reigning  sovereign  or  of  his  minions,  can! 
the  scaffold  and  the  gibbet.  An  extraordinary  instance  of 
treason  by  words,  was  mentioned  in  our  discussion  of  this 
subject  at  the  last  session,  where  a  man  of  note  was  put  to 
death  for  declaring  m  a  moment  of  irritation,  on  hear 
the  shooting  by  the  King,  of  his  favorite  stag,  that  "be  wished 
the  horns  of  the  stag  were  in  the  King's  belly."     As  Plutarch 


'2,0 

relates  of  Dionysius.  the  tyrant,  that  he  capitally  executed  a 
:mbject  for  relating  that  he  had  dreamed  he  killed  the  King, 

A  that  he   thought  of  it  while  awake.     Sir, 
Mney  ana  H,  and  a  hundred  other  martyrs 

f  ti  •  reedom,  which  loomed  out  in  the  English  : 

ration  ox  j  id  assumed  its  fail  proportions  in  our  Ameri- 

can Coiistittti:  ntury  later,  will  rash  upon  our  men 

■j.z  the  don  of  this  the'hie,  and  illustrate  the  v. 

the  c-  :.     While  it  sufiioieu:. 

His  and  parricidal  hands,  it  pr. 
the   citizen  from   that  vortex  of  constructive  and  expl 
treasons,  which  has  engubphed  in  bloody  arid  premature  graves 
so  many  innocent  men.     -  To  prevent  the  possibility  of  , 
cala-Hi  treason  to  offences 

>f  minor  impor.fanf!^,  isays  Chief  -Justice  Marshall,)  that  great 

ednch  defines  and  limits  the  various  d: 
,3iit,  has  given  a  rule  on  tb 
to  the  Legish 

can  be  permitted  to  transcend."  With  this  limita 
charges  of  treason,  and  the  experience  of  that  rational  freed. ,m 
0  justiru  lion  of  the  State,  came  more  liberal 
views  in  relation  to  the  interior  crimes  of  its  class.  Mis- 
prision of  treason  has  entirely  disappeared  from  the  statute 
book  of  the  State.  It.  is  formd  in  that  of  the  United  States, 
covering  only  a  single  offence,  according  to  its  literal  meaning, 
that  of  concealing  and  not  disclosing  and  making  known  to 
the  public  authorities,  the  commission  of  any  treason  that  may 
come  to  the  knowledge  of  the  person  charged.  Sedition  is 
round  in  our  Revised  Code,  as  the  heading  of  a  particular 
offence,  that  of  exciting  slaves  to  insurrection.  In  this  con- 
nection, it  is  a  salutary  part  of  our  law  according  with  public 
sentiment,  and  can  be  executed  with  effect  wherever  an 
offender  may  be  found.  This  was  abundantly  proved  in  the 
case  of  Daniel  Worth',  and  of  others.  This  law  applies  to 
attempts  to  excite  rebellion  in  a  degraded  caste  in  our  society, 
wholly  devoid  of  all  political  power. 

But  among  freemen,  every  one  of  whom  is  equal,  in  con- 
sultation and  at  the  ballot-box,  if  restraints  upon  the  fredom 
of  speech  and  of  the  press  may  be  imposed,  beyond  those 
provided  by  the  common  law,  it  lias  never  been  found  n< 
sary  to  call  them  into  operation  heretofore.  There  seems  to 
have  been  a  general,  acquiescence  in  the  doctrines  of  Jeffer- 
son in  his  inaugural  address.  "  If  there  be  any  among  us  who 
would  wish  to  dissolve  this  Union  [Confederacy]  or  to  chi 
its  republican  form,  let  them  stand  undisturbed  as  monuments 
of  the  safety  with  which  error  of  opinion  may  be  tolerated, 


26 

where  reason  is  left  free  to  combat  it."  I  have  myself  been 
accustomed  to  associate  statutes  of_sedition  with  those  indict- 
ments for  seditious  libel,  where  there  were  attempts  to  screen 
corruption,  imbecility,  favoritism,  and  the  insolence  of  office, 
by  criminal  prosecutions  against  persons  who  exposed  them, 
and  when  the  gallantry  of  Erskine,  Cumin,  and  other  advo- 
cates at  the  English  and  Irish  bar  won  immortal  names  in 
wrestling  with  a  domineering  and  subservient  bench,  that 
never  forgot  the  hand  that  elevated  it  above  the  people,  nor 
its  favorites,  and  prevailing  in  the  contest.  I  have  been 
accustomed  to  look  upon  them  as  bringing  into  active  employ- 
ment, if  not  producing,  a  vile  race  of  parasites  and  sycophants, 
Titus  Oateses,  Bedloes,  etc.,  thronging  the  gates  of  office  and 
patronage,  in  the  character  of  spies  and  informers,  ready  to 
discover  Meal-tub  plots  and  Rye-house  plots  of  the  most  direful 
import,  and  to  accuse  any  man,  whom  it  might  be  desirable  to 
hunt  down  and  destroy.  You  propose  by  the  first  section  of 
this  ordinance,  to  create  nine  indictable  offences,  every  one 
of  which  is  described  in  a  manner  so  loose  and  undefined,  as 
to  hold  out  the  greatest  temptations  to  malignant  accusers,  and 
to  produce  neighborhood  strifes  without  end.  I  shall  not 
detain  the  Convention  by  a  recital  of  them.  Their  counter- 
part may  be  found  in  the  misprisions  against  the  King's  person 
and  government,  which  Blackstone  says  may  be  "  by  speaking 
or  writing  against  them,  cursing  or  wishing  him  ill,  giving  out 
scandalous  stories  concerning  him,  or  doing  anything  that  may 
tend  to  lessen  him  in  the  esteem  of  his  subjects;  may  weaken 
his  government,  or  may  raise  jealousies  between  him  and  his 
people."  Under  this  it  has  been  at  different  times  held 
indictable,  to  say  of  the  King  that  he  had  a  cold,  at  a  time 
when  his  services  were  imporiant  in  the  field — also,  to  say  of 
him  falsely,  that  he  labored  under  mental  deiangement— or 
to  drink  to  the  pious  memory  of  a  traitor,  or  for  a  clergyman 
to  absolve  persons  at  the  gallows  who  there  persist  in  the 
treasons  for  which  they  die,  &c.  4.  Black.  Com..  123.  Sir,  the 
whole  doctrine  is  unsuited  to  onrfree  institutions.  It  is  founded 
on  the  supposition,  that  force,  compulsion,  is  the  only  means 
of  upholding  government,  even  to  excite  love  for  it — and  that 
public  opinion  is  nothing,  and  must  be  subordinated  by  it. 
We  have  sufficient  law  now  to  afford  all  the  security  needed, 
if,  as  no  one  doubts,  public  sentiment  is  with  us,  and  will  enable 
us  to  enforce  it — and  if  it  is  nor,  no  new  statutory  enactment 
wilj  be  enforced.  The  common  law  of  riot,  rout,  unlawful 
assembly,  and  conspiracy  enable  you  to  take  hold  of  any 
parties  whose  guilt  may  be  dangerous;  and  the  doctrine  of 
seditious  libel  is  the  same  now  that  it  was  in  1802  when  Harry 


27 

Crosswell  wa3  convicted  of  a  libel  on  President  Jefferson — 
except  that  the  truth  of  the  matter  published  is  a  defence. 
Over  and  above  this,  every  section  of  the  State  is  accessible 
on  brief  notice  by  Railroad,  and  the  miliary  power  may  be 
exerted  with  eifect  on  the  first  appearance  of  insurrection. 

But,  Sir,  the  whole  scope  of  this  ordinance  is  to  give  proper 
defence  and  protection  to  the  Confederate  States.  There  are 
a  few  expletives  thrown  in,  in  which  the  State  is  mentioned, 
but  th'.y  seem  only  designed  to  fill  out,  a  sentence,  and  give 
roundness  to  a  period.  Kow  what  businesisit  of  ours  to  pass 
a  law  to  punish  sedition  against  the  Confederate  States  any 
more  than  to  punish  the  robbery  of  its  treasury  or  post-office, 
or  piracy  against,  its  ships  on  the  sea  ?  If  there  is  to  be  such 
a  crime  as  sedition  against  that  government,  ought  it  not  to 
be  a  general  crime,  punishable  in  Virginia,  Tennessee,  Ken- 
tucky and  other  States  ?  And  has  not  that  government  a  Con- 
gress now  in  session  for  the  third  or  fourth  time?  Is  it  sup- 
posed that  we  are  wiser  than  they,  and  are  to  usurp  their 
functions?  If  that  Congress  has  the  same  propensity  to  copy 
that  prevails  here,  they  need  only  turn  to  the  administration 
of  the  elder  Adams,  and  re-enact  the  sedition  law  of  that 
day,  referred  to  by  the  gentleman  from  Richmond,  (Mr.  Leak.) 
It  is  a  very  well  drawn  statute,  much  better  than  this  otdi- 
nance.  I  say  this  without  disrespect  to  the  committee,  for 
they  only  profess  to  copy  from  the  act  of  1777.  The  gentle- 
man from  Richmond  made  a  slight  error  in  supposing  ibis  was 
the  same  with  the  sedition  law  of  1798.  It  is  infinitely  worse. 
Jtfdge  Chase  had  decided  and  correctly  too,  that  there  was  no 
law  of  the  United  States  except  what  was  enacted  by  statute, 
and  therefore  that  there  was  no  law  of  libel  to  protect  its 
officers  from  the  President  downward  against  any  defamation 
whatever.  The  act  was  consequently  passed  to  punish  by 
indictment  libellous  publications  against  them,  which  would 
be  indictable  if  made  against  other  persons  by  the  common 
law — allowing,  however,  the  truth  to  be  given  in  evidence  as 
a  defence.  Yet,  so  distasteful  was  it  to  the  public  mind,  and 
so  odious  did  it  render  its  authors,  that  after  a  lapse  of  half  a 
century,  vhen  all  other  party  issues  of  that  time  are  forgotten, 
it  still  remains  in  public  recollection.  But  as  a  restriction  on 
liberty,  the  liberty  of  the  press  and  of  speech,  it  was  as 
nothing  compared  with  this  act,  which  has  been  exhumed 
from  the  oblivion  in  which  it  has  lain  for  eighty-odd  years, 
and  which  it  is  proposed  to  revivify,  just  as  ft  was  on  the  day 
of  its  first  enactment.  At  that  time  the  doctrine  prevailed 
here  as  well  as  in  the  mother  country,  of  "  the  greater  (he 
truth  the  greater  the  libel."     So  that  if  any  man  "shall  pub- 


iish  and  deliberately  speak  or  write  against  our  public  defence," 
(this  is  one  of  the  offences  it  creates)  no  matter  how  true  may 
c>e  the  words  written  or  spolcen,  such  as  that  a  commanding 
General  tied  ingloriously  from  a  field  of  battle,  when  victory 
was  wi.hi'n  his  grasp,  or  that  from  his  incompetency  he  . 

half    his    command    v.  ithont    any    conce: 
although!  it  may  be  every  word  true,  the  party  who  wrok.  erf 
spoke  tii  us,  must  be  con  vie 

if  il\e  (yongress  of  the  Confederate  States  desires  to  tr- 
over again  the  experiment  of  a  Sedition  Law-of  1798,  or  to 
go  baek  beyond  it.  and  re-copy  old  penal  statutes  made  to  pun 
•iown  .  or  uphold  the  prerogatives  of  royalty,  the  way 

iv  open  tci  them.     But  let  us  not  render  ourselves  a 
et  of  me          ..        by  taking  better  care  of  that  govern- 
ment then  it  tabes  of  itself.     Let  us  not  stigmatize  oar  people 
by  sin  em  out  as  peculiar  subjects  for  the  operation  of 

_aws  of  this  kind.     Let  us  not   give  just  cause  of  offence-  to 
them,  by  showing  a  distrust  of  that  elevated  patriotism    end 
unanimity  with  which   they   are   sustaining   their  e< 
'.   '■  her  hour  of  trial.     -Let  iT-vabandon  this  measure  as  in 
itiii,  as  it  is  insulting,  oppressive  and  unjust.     I  ash  the  yeas 
...  nays  on  the  question  of  its  indefinite  postponement.* 


.APPENDIX. 


1KB   FOLLOWING    IS    THE    ORDINANCE,   PRESENTED    BY    ME.    JjjIGG'S, 
OF   MARTIN,  CHAIRMAN   OF   THE    COMMITTEE  : 

AN  ORDINANCE 

To  define  and  punish  Sedition,  and  to  prevent  the  dangers 
■xhieh  may  etrise  from  persons  disaffected  to  the  State. 

Be  it  ordaiitcel.  That  if  any  person  within  this  State  shall 
attempt  to  convey  intelligence  to  the  enemies  of  the  Confed- 
erate States,  or  shall  publish  and  deliberately  speak  or  write 
against  our  public  defence  :  or  shall  maliciously  and  advisedly 
endeavor  to  excite  the  people  to  resist  the  Government  of 
tliis  State  or  of  the  Confederate  States  ;  or  persuade  them  to 
return  to  a  dependence  on  the  Government  of  the  United 
States  ;  or  shall  knowingly  spread  false  and  dispiriting  news  : 
or  maliciously  or  advisedly  terrify  and  discourage  the  people 
from  enlisting  into  the  service  of  this  State  or  of  the  Confeder- 
ate States ;  or  shall  stir  up  or  excite  tumults,  disorders,  or 
insurrections  in  this  State  :  or  dispose  the  people  to  favor  the 
enemy  ;  or  oppose  or  endeavor  to  prevent  the  measures  car- 
rying on  in  support  of  the  freedom  and  independence  of  the 
said  Confederate  States  ;  every  such  person  being  thereof 
legally  convicted  by  the  evidence  of  two  or  more  credible 
witnesses,  or  other  sufficient  testimony,  shall  be  adjudged 
guilty  of  a  high  misdemeanor,  and  shall  be  fined  and  impris- 
oned at  the  discretion  of  the  court,  and  shall  enter  into  recog- 
nisance with  good  surety,  in  such  sum  as  the  court  may  deem 
proper,  to  be  of  the  peace  and  good  behavior  towaid  all 
oeople  in  the  State  for  three  years  thereafter. 

2d.  Any  Judge  or  Justice  of  the  Peace  on  complaint  to  him 
made  on  the  oath  ©r  affirmation  of  one  or  more  credible  per- 
son or  persons,  shall  cause  to  be  brought  before  him  any 
offender  against  the  provisions  of  this  ordinance,  who  shall 
enter  into  recognisance  with  sufficient  surety  to  be  and  appear 
at  the  next  county  court  of  the  county  wherein  the  offence 
was  committed,  and  abide  the  judgment  of  said  court ;  and 
in  the  meantime,  to  be  of  the  peace  and  good  behavior  to  all 


30 

people  within  the  State  ;  and  for  the  want  of  such  surety,  the 
said  Judge  or  Justice  shall  commit  such  offender  to  the  jail  of 
jfche  county. 

3d.  It  shall  be  the  duty  of  every  free  male  person  in  this 
State  above  sixteen  years  of  age,  (volunteers  mustered  into 
the  service  of  the  State  or  of  the  Confederate  States,  persons 
non  compos  mentis  and  prisoners  of  war  only  excepted,)  before 
some  court  or  officer  authorized  to  administer  oaths,  to  take 
the  following  oath  or  affirmation  : 

"  I,  A  B,  do  solemnly  swear  (or  affirm  as  the  case  may  be) 
that  I  will  bear  faithful  and  true  allegiance  to  the  State  of 
North-Carolina,  and  will  to  the  utmost  of  my  power,  support, 
maintain  and  defend  the  independent  government  of  the 
Confederate  States  of  America  against  the  government  of  the 
United  States,  or  any  other  power,  that  by  open  force  or 
otherwise  shall  attempt  to  subvert  the  same.  I  do  hereby 
renounce  all  allegiance  to  the  government,  of  the  United 
States,  and  I  will  support  and  defend  the  Constitution  of  the 
Confederate  States  of  America  and  the  Constitution  of  this 
State  not  inconsistent  with  the  Constitution  of  the  Confederate 
States,  so  help  me  God." 

And  it  shall  be  the  duty  of  every  officer  administrating 
such  oath  to  certify  under  his  hand  and  sea!  to  the  next  county 
court  which  may  be  held  in  the  county  where  the  jurors  or 
affirmants  reside,  the  names  of  all  persons,  who  have  taken 
the  oath  before  him,  which  certificate  shall  be  recorded  by 
the  clerk  of  the  county  court  in  a  book  to  be  kept  for  that 
purpose. 

4.-th.  Every  male  person  as  aforesaid  who  shall  fail  or  neglect 
to  take  the  said  oath  or  affirmation  on  or  before  the  first  day 
of  January  next,  may,  by  any  Justice  of  the  Peace  of  his 
county,  be  cited  to  appear  before  the  county  court  to  take  the 
same  ;  and  if  any  person  thus  cited  shall  fail  to  attend,  or 
attending  at  the  time  and  place,  as  he  shall  have  been  thus 
warned/shall  refuse  to  take  the  oath  or  affirmation,  (except 
excused  by  sickness,  unavoidable  necessity,  or  other  sufficient 
reasons  to  be  adjudged  of  by  the  next  county  court,)  shall  be 
ordered  by  the  said  county  court  to  take  the  said  oath  or  quit 
the  State,  and  depart  out  of  the  Confederate  States  within 
thirty  days  thereafter.  Provided  howeve?',  That  the  county 
court  may,  in  their  discretion,  permit  a  person  failing  as  afore- 
said, to  remain  in  the  State. 

oth.  If  such  person  shall  be  permitted  to  remain  in  the 
State,  he  shall  be  adjudged  incapable  and  disabled  in  law  to 
have,  occupy,  or  enjoy  any  office,  appointment,  license,  or 
election  of  trust  or  profit,  civil  or  military,  within  this  State, 


31 

and  shall  not  be  capable  of  being  elected  to,  or  aiding  by  his 
vote  to  be  a  member  of  Assembly,  Governor,  or  any  other 
officer;  and  if  any  person  shall  be  directed  to  depart  out  of 
the  Confederate  Slates,  and  shall  not  quit  the  State  within 
thirty  days,  then  such  person  may  be  apprehended  by  the 
wan-ant  of  any  Judge  or  Justice  of  the  Peace  in  fills  State 
(whose  duty  it  shall  he  to  issue  such  warrant)  and  shall  be 
brought  before  the  county  court,  where  the  order  was  made, 
and  the  said  court  shall,  in  such  case,  send  the  person  so 
offending,  as  speedily  as  may  be,  out  of  the  Confederate 
States,  at  the  costs  and  charges  of  such  offender  (if  he  has  the 
means  to  pay  the  same.)  and  to  this  end  shall,  and  may  direct 
the  Clerk  of  the  court  to  issue  an  order  to  any  Sheriff  in  the 
State  to  seize  and  sell  so  much  of  the  goods  and  chattels, 
lands  and  tenements  of  such  person  in  his  county  as  may  be 
judged  necessary  by  said  court  to  defray  the  costs  and  charges, 
together  with  the  costs  and  charges  of  apprehending  and 
confining  such  person  until  he  shall  be  sent  out  of  the  Confed- 
erate States;  and  such  sheriff  shall  execute  proper  convey- 
ances for  any  property  so  sold,  and  return  the  money  arising 
by  any  sale  made  by  virtue  of  such  order,  afier  deducting  his 
fees  and  commissions  as  in  other  cases,  to  the  next  county 
court  of  the  county  whence  such  order  issued,  under  the  pen- 
alty of  five  hundred  dollars,  to  be  recovered,  upon  motion 
against  the  Sheriff  and  his  sureties,  by  the  county  Solicitor 
for  the  use  of  the  county,  after  ten  days  notice;  and  if.anv 
surplus  shall  remain  after  paying  all  costs  and  charges  as 
aforesaid,  the  county  court  shall  cause  such  surplus  to  be  paid 
to  the  owner. 

6th.  If  any  person  so  departing  or  sent  off  from  this  State 
shall  return  to  the  same,  then  such  person  shall  be  adjudged 
guilty  of  treason  against  the  State,  and  shall,  and  may  be, 
proceeded  against  in  like  manner  as  directed  in  case  of  treason. 

7th.  This  Ordinance  may  be  modified  or  repealed  by  the 
General  Assembly — shall  fake  effect  at  the  date  of  its  ratifi- 
cation, and  be  published  by  the  Secretary  of  State  as  soon  as 
practicable  thereafter,  in  one  (if  there  be  one)  newspaper  in 
each  Congressional  District,  and  at  each  Court  House  in  the 
several  counties  of  the  State. 


S  bo. 


T    s  book  is  due  on  the  ■' 


f"mn^>rj 


